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TMI Blog2018 (7) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... ingots and wire alongwith certain records/ documents were seized. In addition some documents were recovered from the cabin of vehicle Tata 407 which was found packed/loaded, in the factory premises of the appellant. In furtherance thereof the impugned show cause Notice of February, 2015 was issued. Vide the order under challenge while adjudicating the said show cause notice, amount of Rs. 66,29,476/- was ordered as recoverable from the appellant alongwith the interest in view of Section 11A sub Section (4) of Central excise Act. In addition, a penalty of the equal amount was also imposed upon under Section 11AC of the Central Excise Act. However, an amount of Rs. 30.00 Lakhs already deposited by the appellant was ordered to be appropriated. 3. Aggrieved of the said levy, the appellant has come before this Tribunal. 4. Arguments of ld. Counsel for the appellant as well as of ld. D.R. for Revenue recorded. It is impressed upon on behalf of the appellant that the very basis of the impugned show cause notice is false as the same has been issued in furtherance of the enquiries which were conducted at a third party place namely, M/s. Hind Metal Industries. Due to the said reason itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is the clear cut case of clandestine removal as Mr. Alok Aggarwal himself has admitted the same vide his statement dated 15.06.2012. Though he retracted the same by way of a subsequent written letter dated 19.06.2012, though in English, but appellant has again acknowledged the noticed clandestine removal of copper ingots from his premises. The seized copper ingots and the recovered 31 number of documents corroborate the admission of Shri Alok Aggarwal. In furtherance thereof only, the demand in question was levied and has been confirmed. The order under challenge has accordingly, been justified by ld. DR and appeal is prayed to be dismissed. The ld. DR relied upon the following case laws:- 1) CCE, Delhi-I vs. Praveen Kumar & Co. - 2015 (328) ELT 220 (Tri.-Del.) 2) 2. CCE, Mumbai vs. Kalvert Foods India Pvt. Ltd. - 2011 (27) ELT 643 (S.C.) 3) Reliance Cable Industries vs. CCE, Delhi-II in Appeal No. E/60394 of 2013 & E/55546 of 2014 [Final Order No. 50359-50360/2018 6. The impugned order has been challenged mainly on 3 grounds: (1) The statement of the proprietor of the appellant company being recorded under duress and coercion is not sufficient to prove the alleged clande ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 19.06.2012 as was sent to Revenue Secretary, he has retracted all the above said acknowledgements but irrespective of retraction being within 4 days of the original statement, the fact remains is that it was made to a person other than the one who recorded his statement on 15th June, 2012. Secondly, no coercion, duress, threat etc. is alleged on the part of the Officers, who recorded his statement on 15th June, 2012. Further it is apparent on record that, apart from said retraction, statement of Mr. Alok Aggarwal was recorded thrice subsequently i.e. on 20th November, 2012, 27th November, 2012 and 14th March, 2013. In his statement dated 20th November, 2012, he has deposed in clear corroboration of his statement dated 15th June, 2012 where he admitted about clandestine removal of the copper ingots as was alleged by the Department. Vide his statement dated 27th November, 2012 he has admitted the correctness of statement of Mr. Subash Yadav, the Tempo Driver of Tata 407 DL-IL-E3390. Perusal of the statement of Mr. Subash Yadav makes it clear that he was working for many manufacturers/Traders for transportation of their goods, however, he was mainly working for the appellant for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to corroborate the oral retraction of Mr. Alok Aggarwal but none of the two could produce any such documentary evidence to falsify the data obtained from the recovered/ resumed Pen-drive documents and from the seized from the residence of the appellant except taking the plea that inadvertently compiled data of business of three of the family/members has been jumbled. No other evidence could be produced to corroborate the said submission. Rather, Mr. Navin Aggarwal in his statement has admitted that the record recovered contains the names of those firms with whom the appellant used to have business dealings. Not only this, in the subsequent statement dated 14th March, 2012, Mr. Alok Aggarwal has clearly admitted about clearing of copper ingots weighing 59609.55 Kg. to have been cleared by him without paying any Excise duty. 11. The law with respect to retraction is: The Hon'ble Apex Court in the case of KI.G. Augustine vs. Commissioner of Customs - 1997 (89) ELT 625, it was held that the statement made by a person has to be considered to be a voluntary and true statement, even if, retracted in case the circumstances are not showing any use of threat or coercion and also when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence which the adjudicating authority below has rightly relied upon. There is nothing on record produced by the appellant to let us ignore the documents recovered from his own residence and the factory premises. There is a sufficient admission of the appellant and sufficient corroboration on the record to the effect that appellant was having business transactions with all such concerns whose names are reflected in the documents recovered. Nothing on record to prove that these pertain to the business activity of the father or brother of the proprietor of the appellant. There is sufficient corroboration qua the document recovered from the cabin of the vehicle which was found parked in the factory premises of the appellant at the time of raid. There is sufficient corroboration to the correctness of the contents thereof in the statement of the driver of the said vehicle itself with simultaneous corroboration from the statement of the worker of appellant namely Mr.Jagat Singh that Mr. Subash Yadav was the driver of the said vehicle who used to deliver goods from appellant's factory at the instance of the appellant. The said vehicle was seized from the factory of the appellant loaded wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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